Judges Make Poor Vice Principals

1. Judges Make Poor Vice Principals The Fifth Circuit Speaks on Bullying of Students with Disabilities Presented by: Attorney Katie Payne March, 5 2014

2. Lance v. Lewisville Independent School District Estate of Lance v. Lewisville Independent School District, Dkt. No. 12-41139, ---F.3d ---, (5th Cir. 2004), 2014 WL 805452 (5th Cir. Feb. 28, 2014)

3. The Facts • Montana Lance (“ML”)—a fourth grade, a student with disabilities, took his own life inside the school nurse’s bathroom. • The ARD Committee had found that ML qualified for special services under IDEA to accommodate: • his speech impediment (a lisp) • learning disability (Attention Deficit Hyperactivity Disorder) • and, eventually, his emotional disturbance.

4. The Facts • Beginning when ML was in kindergarten, the District provided: • speech therapy • dyslexia services, • and counseling

5. The Facts When ML was in second grade his mother informed a teacher that “he was making verbal statements about hurting himself at home.” ARD Committee requested a psychological evaluation, which concluded that ML should be identified as “Emotionally Disturbed.”

6. Bullying Incidents November 4, 2009, a student verbally provoked (or tried to) ML. ML responded “I'm not afraid of you,” pushed the student, and the student then pushed Ml into a stack of chairs. December 18, 2009, ML pulled out a pocketknife. He was playing outside when a student told him to stop playing like a ninja. ML told this student that he was a “bully.” A second student then said “beat ML up again” and the first student picked up ML and moved him. ML explained, “I just pulled out my knife, but I didn't know it was there.”

7. Bullying Incidents In response to the December incident, the District placed ML in the DAEP for ten days. ML’s mother wrote the principal a letter arguing that the ten-day transfer was too harsh: “ML was being bullied by other students and felt fearful. The other students actually picked ML off of his feet.” Mrs. Lance also wrote the Superintendent, explaining that ML liked DAEP because “he has not experienced the hazing and bullying from the other students in contrast to the experiences he has at his home campus. I am concerned that this is more of a reward to my child than a punishment.” The District reduced ML’s time in DAEP to eight days.

8. Bullying Incidents • January 4, 2010, ML began his time at DAEP and met with a school psychologist for individual counseling. • January 12, 2010, ML told his DAEP teacher that “he wanted to kill himself.” A counselor met with ML and notified Mr. Lance that ML had made suicidal statements. • The counselor concluded that the “lethality” of ML’s statements was low. • The Lances arranged for ML to meet with a psychologist. • January 18, 2010, the psychologist met with ML. • She testified that ML “did not give any indication that he was intending to end his life.”

9. Bullying Incidents • January 19, 2010, ML returned to his elementary campus. • January 21, 2010, ML and classmates had another altercation. • ML was in the breakfast line and “he was called a name.” ML “told the bullies to stop it, and he was shoved into the rods.” ML “stormed off and sat by himself at an empty table.” Later in the day a substitute teacher sent ML and his classmate to the office for “talking” and “using profanity.” ML then met with the assistant principal, Amy Teddy.

10. Bullying Incidents As required of all students who are sent to the office, ML was allowed to use only the nurse's bathroom. ML was using the nurse's bathroom when a significant amount of time passed. The nurse checked on ML, and he said “he'd be right out,” but soon stopped responding to the nurse's inquiries. The nurse did not have a key to unlock the door and called the custodian. The custodian did not have a key either. The custodian then opened the door with a screwdriver. ML was pronounced DOA at the hospital.

11. Case Background • ML’s Parents sued the Lewisville Independent School district for: • Discrimination based on disability under §504; and • Violation of ML’s constitutional rights under §1983 • The District Court granted summary judgment on all claims, ML’s Parents appealed to the 5th Circuit

12. §504 Claims • The Lances advanced two theories of recovery under §504; • First, the Lances’ claimed that the School District acted with gross professional misjudgment by failing to provide ML educational services necessary to satisfy §504 FAPE requirement; • Second, the Lances’ claimed that the School District discriminated against ML because it was deliberately indifferent to the disability-based harassment that he suffered at the hands of his classmates.

13. The Court Compares FAPE IDEA §504 “disability” under IDEA. 20 U.S.C. § 1401(3)(a) FAPE under IDEA requires that a student's IEP be “reasonably calculated to enable the child to receive educational benefits.” “disability” under § 504. 34 C.F.R. § 104.3(j)(1). FAPE requires district to provide services “designed to meet individual educational needs of handicapped persons as adequately as the needs of nonhandicapped persons are met.” 34 C.F.R. § 104.33(b)(1).

14. §504 – Failure to Provide • In order to prevail on this claim, “the Lances must show that the School District ‘refused to provide reasonable accommodations for the handicapped plaintiff to receive the full benefits of the school program.’” • The Lances contend that ML was denied a FAPE as defined by § 504’s regulations, but not IDEA. • Their failure-to-provide claims, thus, are predicated on the correctness of their contention that they “do not need to establish a violation of IDEA in order to show Montana was denied a FAPE under § 504.” • The Court said, “‘§504 regulations distinctly state that adopting a valid IEP is sufficient but not necessary to satisfy the §504 FAPE requirements.’”

15. §504 – Failure to Provide (continued) • Thus, the Court states, “The Lances cannot sustain their §504 FAPE claim because the School District ‘implemented…an Individualized Education Program developed in accordance with IDEA.” • First, the court points out that the Lances participated in every stage of the design and implementation of ML’s IEP and BIP; • Second, the evidence of ARD deliberations demonstrated that ML was provided meaningful access to education consistent with IDEA and §504.

16. §504 – Failure to Provide (continued) Therefore, the court held that summary judgment was appropriate on the Lance’s failure-to-provide claim.

17. §504 – Deliberate Indifference • The Lances' second § 504 claim was that the District discriminated against ML because it was deliberately indifferent to the disability-based harassment that he suffered at the hands of his classmates. • Plaintiffs had to show: • (1) he was an individual with a disability, • (2) he was harassed based on his disability, • (3) the harassment was sufficiently severe or pervasive that it altered the condition of his education and created an abusive educational environment, • (4) [defendant] knew about the harassment, and • (5) [defendant] was deliberately indifferent to the harassment.

18. §504 – Deliberate Indifference The Court focused on the “deliberate indifference” element: “Section 504 does not require that schools eradicate each instance of bullying from their hallways to avoid liability.” “Courts should refrain from second-guessing the disciplinary decisions made by school administrators ... [s]chool administrators will continue to enjoy the flexibility they require so long as funding recipients are deemed ‘deliberately indifferent’ to acts of student-on-student harassment only where the recipient's response to the harassment or lack thereof is clearly unreasonable in light of the known circumstances.”

19. §1983 Claims • In the district court, the Lances asserted three theories of recovery under §1983. • (1) a “special relationship” theory; • (2) a “state-created danger” theory; and • (3) a “cause-to-be-subjected” theory. • On appeal, however, the Fifth Circuit only discussed the proposed “state-created danger” theory, determining that even if the Court were to recognize this theory of liability (which it has not), the facts of this case would not support such a theory.

20. What did the District do right? • Investigated the incidents and punished all of the students involved, for example: • After the December 18, 2009 incident when ML pulled out his pocketknife, Teddy testified that she • (1) “interviewed all of the students involved and documented their explanations of the events,” • (2) “met individually with all of the other students involved in the incident and asked them whether they felt threatened when ML took out the knife,” and • (3) “contacted Mr. Lance and [the other students'] parents and met with them in person that day, along with notifying all the parents and students involved.” • Further, “[e]very child involved in th[e] incident received consequences,” and “[e]very child with inappropriate behaviors received a suspension ... of up to three days.”

21. What did the District do right? Anti-bullying policies were “appropriate and up to national standards.” Investigated each incident and gave consequences to all children who earned them. Increased surveillance of ML and proactive approach to building relationships with other students by his teachers. “School districts are afforded flexibility in responding to unacceptable behavior and may tailor their responses to the circumstances.”

22. Judges Make Poor Vice Principals The Fifth Circuit Speaks on Bullying of Students with Disabilities Presented by: Attorney Katie E. Payne kpayne@wabsa.com March, 5 2014